Monday, September 12, 2011

The Criminal Defense Mafia

As practice areas go, the criminal defense bar is about as collegial as it gets.

Yes, we, like any other type of "consumer" lawyers (PI, divorce), have our bunch that market themselves to death, but we tend to come together more often than other types of lawyers, as there is still a large group of us who are actually doing this work with the understanding that it means something. And so when Bob is going to be held in contempt you may find a dozen or so fellow criminal defense lawyers in the courtroom for support, and when Jim has a trial tomorrow, a few of us will send him some voir dire questions to help him out. We generally, not always, look out for our colleagues.

But there exists a mafia within our group. It's the former federal prosecutor mafia. There's probably a former state prosecutor mafia, but it's less structured, and generally isn't in on major white collar cases. Major white collar cases are where the "money" is, and where there is money, there are assholes who don't care about quality of representation or the client's choice of lawyer. More about that in a minute.

I've said forever that there is a difference between a criminal defense lawyer and a former prosecutor. Especially the "WE'RE FORMER PROSECUTORS" crew. That statement is much more true when you throw in former federal prosecutor.

Federal prosecutors are generally sprouted from better law schools and spent some time in BigLaw prior to going to work for the gubmint. When they leave the U.S. Attorney's office, it's rarely because they developed a sense that defending criminals was meaningful, rather, there's another BigLaw opportunity to be the "white collar" lawyer (never "criminal defense" - never), or they want to start a defense boutique and use their perceived connection to the office as a springboard to clients. "I used to work there, so I can get better deals." What most people don't' realize, is that most people, "used to work there." They're gone too. What most people don't realize either, is that current prosecutors don't like it much when their former colleagues use "I use to work here" as an attempt to gain some benefit. Client's don't really know that, so, whatever.

When former federal prosecutors go out in to the world of criminal defense, they generally like to stick with their former colleagues. Nothing wrong with that, except when they violate the Rules of Professional Responsibility, and violate the unwritten rule of helping clients without concern for their own ass.

The first time I realized there was a mafia in law though, it was not from a former prosecutor, it was a civil lawyer.

I was right out of the PD's office and received a call from a newly arrested business owner. It wasn't a big white collar case, he was charged with possession of cocaine.

We spoke on the phone and he agreed to hire me. He just wanted me to come to his business to get the check and meet. Being a young hungry lawyer, I obliged. When I arrived, he had a look of fear on his face and apologized. He had spoken with his civil lawyer who told him "you cannot hire that guy, if you don't hire the lawyer I am recommending to you, I will no longer work for you."

And that was that.

The former federal prosecutor mafia is much more apparent. I see the same half dozen lawyers in the same white collar cases, and I used to wonder - just how did that happen?

Now let me pause and say that yes, when I have co-defendants come to my office, I will recommend other lawyers. I make the recommendation based on who I think is the best lawyer for the client, having nothing to do with where they used to work. I have a weird sense that clients should be paired up with good lawyers that are a good fit, period.

The way it really works though, is like an insurance company.

There's a lead lawyer. He meets with all the co-defendants. He's getting paid by the company or the guy with the money. He recommends lawyers. The lawyers he recommends will all be paid for by his client. The other clients are free to hire who they want (with much discouragement), but they are on their own.

So a client hears of the investigation and calls their friendly neighborhood lawyer who they've known for 15 years. They advise of the situation and say they are not doing anything without this particular lawyer. When the subpoena comes, or the agent comes knocking, they call the head of the mafia who advises that friendly neighborhood lawyer is not a good choice, because he's real expensive and mafia head won't pay his fee regardless. He will though, pay the fee of a fellow "former federal prosecutor" who will of course represent the client marvelously and within the confines of what the mafia wants - information and access to the client.

There sometimes comes a point where the client wonders whether the lawyer "assigned" to them is looking out for their best interest, but often it's too late. If the client winds up charged and wants to go to trial, well, they'll get to that, maybe.

Some of these lawyers are very good, mind you, but the way they handle cases and bring other lawyers in, is a dirty little secret of our profession.